From the Hotline

By Teri Henning, General Counsel
Pennsylvania Newspaper Association

Q: At its reorganization meeting, our City Council elected its officers, but took the vote by secret paper ballot. Now they are refusing to say how each member voted? Is this a violation of the Sunshine Act?

A: Yes. Under the Sunshine Act, agency votes are required to be publicly cast. Public agencies are not permitted to conduct secret votes, and there is no provision in the Sunshine Act that permits “ballot” voting.

Section 705 of the Act provides as follows:

In all meetings of agencies, the vote of each member who actually votes on any resolution, rule, order, regulation, ordinance or the setting of official policy must be publicly cast and, in the case of roll call votes, recorded.

The appointment of Board officers would fall under this provision as those appointments would constitute a resolution, rule or order of the Board.

In a 1995 case, the Pennsylvania Commonwealth Court confirmed that a vote to fill a vacancy on a board was required to be publicly cast. See Public Opinion v. Chambersburg Area School Dist., 654 A.2d 284 (Pa. Cmwlth. 1995). In that case, the Court defined “resolution” broadly, to include “a proposal pertaining to some matter that is presented to an official body for consideration and, if adopted by vote, becomes the formal expression of the opinion or will of the official body on that matter.” Accordingly, the Court found that the appointment of a new board member was in the nature of a “resolution.” Although the Public Opinion case was decided under a former version of the Sunshine Act, the relevant provisions have not changed.

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